Citation Nr: 1110518 Decision Date: 03/16/11 Archive Date: 03/30/11 DOCKET NO. 08-37 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to a rating in excess of 20 percent for type 2 diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. M. Clark, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a February 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Phoenix, Arizona. The Veteran testified before the undersigned Veterans Law Judge in February 2010. A transcript of the hearing is of record. Most recently, in May 2010, the Board remanded the issue on appeal, as well as denied a claim for an increased rating for posttraumatic stress disorder (PTSD) and granted a claim for entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. In September 2010, the Appeals Management Center in Washington, DC granted TDIU effective January 10, 2007. Pursuant to the May 2010 Remand, the RO was instructed to request outstanding VA treatment records beginning in February 2010, from the Phoenix VAMC. The Board finds that the requested development has been completed. FINDING OF FACT The competent medical evidence shows that the Veteran's service-connected diabetes mellitus is managed by an oral hypoglycemic agent and restricted diet; however, his diabetes mellitus does not require regulation of activities or use of insulin. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.119, Diagnostic Code (DC) 7913 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case, a letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in September 2007, prior to the initial RO decision that is the subject of this appeal. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. With respect to the Dingess requirements, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained VA treatment records. Moreover, the Veteran has submitted private treatment records. The Board notes that records in the claims file indicate that the Veteran is in receipt of benefits from the Social Security Administration (SSA). In Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010), the Court noted that 38 U.S.C.A. § 5103A did not require VA to obtain all medical records or all SSA disability records, only those that are relevant to the Veteran's claim. The Court also stated that VA was not required to obtain records in every case in order to rule out their relevance. Rather, the standard is: as long as a reasonable possibility exists that the records are relevant to the veteran's claim, VA is required to assist the veteran in obtaining the identified records. Information in a July 2008 VA treatment record shows that the Veteran is receipt of Supplemental Security Income (SSI) based on age and not Social Security Disability Income (SSDI). Moreover, the Veteran himself did not identify any SSA records that would be relevant to his claim. The Board, therefore, concludes that the record does not establish a reasonable possibility that there are such records that are relevant to this claim. As such, it is not necessary to Remand for these records. Next, the Veteran was afforded VA examinations in October 2007 and December 2009. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's disability since the December 2009 VA examination. Moreover, the Board finds the above VA examinations to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate his disability under the applicable rating criteria. Accordingly, the Board finds that VA's duty to assist, with respect to obtaining a VA examination with respect to the issue on appeal, has been met. 38 C.F.R. § 3.159(c)(4). Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. In February 2010, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims recently held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the February 2010 BVA hearing, the undersigned Veterans Law Judge enumerated the issue on appeal. See T. at 2. Also, information was solicited regarding the severity of his diabetes symptoms (17-23). While outstanding medical records were revealed during his testimony, the Board remanded for these records in May 2010. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained. See Bryant, 23 Vet. App. at 497. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2010). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2010). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2010). As is the case here, where entitlement to compensation has already been established and an increase in the disability ratings are at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Throughout the rating period on appeal, the Veteran has been rated at a 20 percent disability rating for his diabetes mellitus under DC 7913. A 20 percent rating is assigned for diabetes mellitus requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is assigned for diabetes mellitus requiring insulin, a restricted diet, and regulation of activities. A 60 percent rating is assigned for diabetes mellitus requiring insulin, a restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A maximum 100 percent rating is assigned for diabetes mellitus requiring more than one daily injection of insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Id. Note (1) to DC 7913 provides that compensable complications of diabetes will be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Non-compensable complications are considered part of the diabetic process. Note (2) to DC 7913 states that, when diabetes mellitus has been diagnosed conclusively, a glucose tolerance test should be not requested solely for rating purposes. See 38 C.F.R. § 4.119, DC 7913, Notes (1), (2) (2010). "Regulation of activities" has been defined as the situation where the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining "regulation of activities," as used by VA in DC 7913). Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007). The Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent. VA treatment records confirm that the Veteran's service-connected diabetes mellitus is managed by a restricted diet. For example, a June 2006 VA treatment record reflected that the Veteran was on a restricted diet. He reported at his October 2007 VA examination that he was currently followed a restricted or special diet. A March 2008 private treatment indicated that the Veteran had been instructed by his private treating physician to be on a low starch diet, using the South Beach Diet as a guide. May 2007, August 2007, October 2007, December 2007, and January 2009 private treatment records also reflect a restricted diet. A July 2008 VA treatment record noted that the Veteran had been prescribed a diabetic diet. His December 2009 VA examination also reflected that he was on a restricted diet. However, the record does not reflect that the Veteran's diabetes mellitus necessitates a regulation of activities. On the contrary, at his October 2007 VA examination, the Veteran reported that he was not restricted in the ability to perform strenuous activities. The December 2009 VA examiner similarly indicated that his diabetes mellitus did not restrict his activity. Consideration has been given to a letter submitted in March 2008, from the Veteran's private treating physician, indicating that the Veteran was instructed to limit his activities, to include walking and standing for any length of time. A January 2009 private treatment record noted that the Veteran was restricted in his activity, in that he was not allowed to work. However, in both instances, there was no indication that the Veteran's diabetes mellitus resulted in this regulation of activities. Rather, the physicians listed a myriad of conditions that limited his ability to work, to include hypertension and various neuropathies. The Board therefore finds that this evidence does not sufficiently establish that the Veteran's diabetes mellitus results in regulation of activities. Nevertheless, even if a restricted diet and regulation of activities were demonstrated, the evidence does not reflect that the Veteran's diabetes mellitus is managed by insulin. At the Veteran's October 2007 VA examination, he reported that he was currently using Byetta for his diabetes mellitus. A March 2008 letter from his private treating physician indicated that the Veteran was put on 5 mcg of Byetta injections twice a day beginning in June 2007. When he was later seen in August 2007, the private physician indicated that because the Veteran still had symptoms of sugar crashes his medication was increased to 10 mcg twice a day and 1 mg of Glimepiride once a day. June 2007, August 2007, October 2007, and January 2009 private treatment records confirm that the Veteran was taking Byetta. The Board notes that while Byetta is a medication used to control diabetes, it is not insulin. November 2007, August 2009, and September 2009 VA treatment records noted that the Veteran was on Gabapentin. A March 2008 VA treatment record indicated that the Veteran was on Glimepiride but was going to switch to Glyburide or Glipizide after discussing with his private treating physician. The December 2009 VA examination indicated that the Veteran was currently taking Glimepiride. A February 2010 VA treatment record reflected that the Veteran was taking Glimepiride and Byetta from a private physician. A March 2010 VA letter to the Veteran indicated that he would be switched from Byetta to Metformin. A May 2010 VA treatment record reflects that a glucometer and diabetes supplies had been mailed to the Veteran. The Board has considered a past medical history provided by the Veteran at a July 2009 VA treatment visit associated with a bunionectomy. The Veteran reported having been on insulin since 2007. He also reported this same history at a February 2010 VA treatment record. However, as noted above the evidence of record does not reflect that the Veteran has been on insulin. Rather, it reflects that the Veteran has been on hypoglycemic agents. The Board recognizes that under Note (1) to Diagnostic Code 7913, the rater is to evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent rating. In this case, the Veteran's October 2007 VA examination indicated that the Veteran suffered from genitourinary symptoms (erectile dysfunction), and diabetic neuropathy due to his diabetes mellitus. No other symptoms of diabetic complications were noted. While hypertension was noted on examination, the VA examiner indicated that this was not a complication of diabetes. The Board has considered a January 2009 statement from the Veteran's private treating physician "summarizing" the Veteran's diabetes. In this document, the private physician listed diagnoses including hypertension. However, the private treating physician did not explicitly indicate that the Veteran's hypertension was caused by the Veteran's diabetes. The Board notes that the Veteran is separately evaluated for his peripheral neuropathy of the right upper extremity (30 percent), peripheral neuropathy of the left upper extremity (20 percent), peripheral neuropathy of the right lower extremity (20 percent), peripheral neuropathy of the left lower extremity (20 percent), and erectile dysfunction (non-compensable). The Veteran has not appealed these determinations and thus evaluations of such residuals are not for appellate consideration at this time. However, at his December 2009 VA examination he was additionally diagnosed with diabetic nephropathy. The Board now turns to the issue of whether the Veteran is entitled to an increased rating based upon diabetic nephropathy associated with diabetes mellitus. Diabetic nephropathy is rated pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7541. Under that diagnostic code, renal involvement in diabetes mellitus should be rated as renal dysfunction. Renal dysfunction manifested by albumin and casts with history of acute nephritis; or, hypertension non-compensable under diagnostic code 7101, is rated noncompensable. Renal dysfunction with constant albumin or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7101 warrants a 30 percent rating. With constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under diagnostic code 7101, a 60 percent rating is warranted. Renal dysfunction with persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion warrants an 80 percent rating. Renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular warrants a 100 percent rating. 38 C.F.R. § 4.115a. Separate ratings are not to be assigned for disability from disease of the heart and any form of nephritis, on account of the close interrelationships of cardiovascular disabilities. 38 C.F.R. § 4.115. For hypertensive vascular disease (hypertension and isolated systolic hypertension), a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control; a 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more; a 40 percent rating is warranted for diastolic pressure predominantly 120 or more 40; and a 60 percent rating is warranted for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. As noted above, the Veteran underwent a VA diabetes mellitus examination in December 2009. He was diagnosed with diabetic nephropathy at that time. Blood pressure readings were 182/80, 132/80, and 132/80. Microalbumin was 2.49. A February 2010 VA treatment record noted that the Veteran had been on medication since 2004 for his hypertension. Additional blood pressure readings included 140/92 (May 2007 private treatment record), 130/80 (June private treatment record), 150/90 (August 2007 private treatment record), 126/84 (October and December 2007 private treatment records), and 120/80 (October 2007 private treatment record). Based on this evidence, the record does not reflect that the Veteran's diastolic pressure has predominantly been 100 or more, or that his systolic pressure has predominantly been 160 or more. Thus, a compensable rating is not warranted under DC 7101. With respect to renal dysfunction, the December 2009 VA examiner diagnosed the Veteran with diabetic nephropathy. However, examination reflected that the Veteran had no incontinence, no surgical intervention, urinary tract infection, bladder stone, nephritis, hospitalization, nor malignancy. The evidence is also void of any findings of hyaline or granular casts or red blood cells. Moreover, while peripheral edema was noted on a February 2010 private treatment record, there was no signs of edema at an October 2007 private treatment visit and March 2008, June 2008, July 2009, February 2010 VA treatment records. The Board notes that mild forefoot edema (February 2010 VA treatment visit) and minor edema in the dorsum of the right foot (May 2010 VA treatment note) were documented in association with a status post right bunionectomy. However, edema associated with renal dysfunction has not been demonstrated. Accordingly, as a compensable rating is not warranted under DC 7541; therefore, a separate rating is not warranted for the Veteran's diabetic nephropathy pursuant to Note (1) to Diagnostic Code 7913. Absent evidence that the Veteran's service-connected diabetes mellitus requires insulin, the Board finds that the criteria for a rating greater than 20 have not been met. With respect to his claim, the Board has also considered the statements of the Veteran that his disability warrants a higher rating. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of this disorder-according to the appropriate diagnostic codes. Such competent evidence-concerning the nature and extent of the Veteran's diabetes mellitus-has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. Based on the evidence, the Board finds that a rating in excess of 20 percent is not warranted for the disability on appeal. The Board has also considered whether the Veteran is entitled to a referral for an extraschedular rating, which is a component of a claim for an increased rating under Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Court recently clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). A determination of whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made by the RO or Board. If the rating criteria are inadequate, the RO or Board must proceed to determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this case, there has been no showing that the Veteran's disability picture could not be contemplated adequately by the applicable schedular rating criteria discussed above. The Veteran's diabetes mellitus was applied to the applicable rating criteria, general counsel opinions, and case law. Although the applicable criteria provide for higher ratings, the Board fully explained why a higher rating was not warranted. Given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's diabetes mellitus disability picture includes exceptional factors. Referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A rating in excess of 20 percent for diabetes mellitus, type II, is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs